The First
District Court of Appeal has reversed the dismissal of a man’s action against
his mother for civil extortion, holding that her threats to make a report to
authorities if he did not comply with certain demands is not protected conduct,
and that an anti-SLAPP motion, based on a contrary notion, was improperly
granted.

The
Div. Four opinion, by Contra Costa Superior Court Judge John W. Kennedy,
sitting on assignment, resuscitates an action by Derrick Foster against Kay
Foster-Dorn.

According
to his complaint, Foster had, at various points, lived with his grandmother,
Earnestine Scott, from 1981 until her death in 2012, and, in later years was
her primary caregiver; during that period, Foster-Dorn was estranged from her
mother and from Foster; when his grandmother’s bills came due, Foster paid
them, being a signatory to her account and authorized to make withdrawals on ATM
card; when she died, he made out checks to three caregivers in amounts that
were owed; and having been told by Scott that she would leave her estate to
him, he believed his authority to write the checks persisted.

As
it happened, however, the grandmother died intestate. Foster-Dorn then claimed
the status as heir, and threatened to have Foster arrested if he did not make
restitution to her for moneys he used to pay the caregivers.

He
did not comply, was arrested and charged with the theft of nearly $7,000 from
the estate, spending nine months in jail, and ultimately pleading guilty,
against advice of counsel, to get out of jail (apparently being sentenced to
time served). Beyond the scope of the opinion was the rightfulness of the
arrest and jailing.

Son Brings Suit

Foster
sued his mother for civil extortion and unjust enrichment. The latter cause of
action was based on her receiving from him, as court ordered restitution, the
sum he had spent in paying the caregivers, although the bank had already
reimbursed the funds to the estate.

A
judgment of dismissal ensued after Alameda Superior Court Judge John True III
granted the anti-SLAPP motion as to the cause of action for civil extortion and
sustained a demurrer without leave to amend to the cause of action for unjust
enrichment.

The
anti-SLAPP motion was based on the theory that making a report to police is
protected petitioning.

Nonetheless,
Kennedy declared in an unpublished opinion, that statute “does not apply to the
threats at issue” in Foster-Dorn’s “demand letter.”

Moreno’s Opinion

Kennedy
pointed to the California Supreme Court’s 2006 decision in Flatley v. Mauro. There,
then-Justice Carlos Moreno (now retired) said that threats by an attorney to
entertainer Michael Flatley “constituted criminal extortion as a matter of law
and, as such, were unprotected by constitutional guarantees of free speech or
petition,” precluding application of the anti-SLAPP statute.

In
Foster’s case, Kennedy said that whether the plaintiff “committed any
wrongdoing or owed the estate money” or not, Foster-Dorn’s “threat to report
criminal conduct, coupled with the demand for property, constitutes ‘criminal
extortion as a matter of law,’ as articulated in Flatley.”

The
fact that the mother “actually made good on the threat and filed a police
report does not place her conduct within the ambit of the anti-SLAPP statute,”
Kennedy wrote.

“In
other words, regardless of whether the police report was protected activity,”
he said, the demand letter was not protected.

Unjust
Enrichment

True
properly sustained a demurrer without leave to amend to the cause of action for
unjust enrichment, Kennedy opined.

He
said the “only possible premise” for the cause of action was that Foster “is
entitled to restitution” from his mother “on a quasi-contract or assumpsit
theory based on her tortious conduct.”

Yet,
he did plead guilty, Kennedy recited.

He
said “the state’s public policy of providing crime victims with direct
restitution for all the losses they suffer…precludes us from requiring” the
mother to make restitution to her son, explaining:

“The
direct crime victim was the estate.”

By
law, he noted, Foster “was required to make restitution to the estate,” and the
fact that his mother will profit from his having made a mistake in paying a
debt of the estate “does not override the important policy considerations of
protecting crime victims.”

He
added that the fact that Foster-Dorn “obtained a windfall by receiving both the
court-ordered restitution and reimbursement from the bank, the claim would be
against the estate and it would belong to the bank,” not Foster.

Kennedy
pointed out:

“[Foster]
was required by law to reimburse the estate; the bank was not under any such
obligation. Therefore, any claim for reimbursement would be for the bank to
establish.”